Opinion
# 2020-015-083 Claim No. 130810 Motion No. M-95912
10-20-2020
EDMEE v. STATE OF NEW YORK
No Appearance Honorable Letitia James, Attorney General By: Albert D. DiGiacomo, Esq., Assistant Attorney General
Synopsis
Causes of action alleging sexual assaults were dismissed based on lack of respondeat superior liability and other causes of action for assault was dismissed as untimely.
Case information
| UID: | 2020-015-083 |
| Claimant(s): | |
| Claimant short name: | EDMEE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130810 |
| Motion number(s): | M-95912 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Albert D. DiGiacomo, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 20, 2020 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
The Court has sua sponte amended the caption to protect the identity of the claimant pursuant to Civil Rights Law 50-b (1).
Decision
Defendant moves for dismissal pursuant to CPLR 3211 (a) (2), (7) and (8) on the grounds the claim fails to state a cause of action and is untimely with respect to certain causes of action.
The instant claim, filed and served on January 10, 2018, alleges claimant, a former inmate, was sexually assaulted by Sergeant Matthews on June 6, 2017 and June 26, 2017 at Mohawk Correctional Facility. The claim further details a series of incidents and threats by correction staff (occurring between July 10, 2017 and November 4, 2017) which followed several grievances filed by the claimant and reports both he and his parents made to the Office of Special Investigations. Claimant also alleges that on November 24, 2017 he was removed from a line forming for the prison weight room and assaulted by an individual identified as "CO(Z)" while other correction officers surrounded him (defendant's Exhibit B, Claim, p. 3). Claimant's request for damages, as alleged on page 5 of the claim, is limited to the physical and emotional suffering that resulted from the sexual assaults on June 6, 2017 and June 26, 2017 as well as the alleged "[g]ang assault" that allegedly occurred on November 24, 2017 (id., p. 4).
On a motion to dismiss a claim pursuant to CPLR 3211 (a) (7) the court is required to
"accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Notwithstanding the favorable treatment of such pleadings, however, "bare legal conclusions with no factual specificity do not suffice to withstand a motion to dismiss" (Mid-Hudson Val. Fed. Credit Union v Quartararo & Lois, PLLC, 155 AD3d 1218 [3d Dept 2017]), affd 31 NY3d 1090 [2018]). Rather, the test to be applied is whether or not the pleading alleges facts "sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense" (CPLR 3013; see also Blake v State of New York, 157 AD3d 1019, 1020 [3d Dept 2018], lv denied 31 NY3d 905 [2018]). Dismissal of a claim is warranted where insufficient facts are alleged to support an element of the claim "or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017]; see also Mid-Hudson Val. Fed. Credit Union, 155 AD3d at 1219).
Here, the express parameters of the claim are limited to a request for damages relating to the alleged sexual assaults on June 6, 2017 and June 26, 2017 as well as the assault by correction staff on November 24, 2017. "Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002]). Whether the conduct is negligent or intentional is not the determining factor. Rather, "the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment" (Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]). Moreover, the test is not whether or not the employee was acting in an authorized manner but "whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions" (Riviello v Waldron, 47 NY2d 297, 302 [1979] [inner quotation marks and citation omitted]; see also McMindes v Jones, 41 AD3d 1196 [4th Dept 2007]; Cepeda v Coughlin, 128 AD2d 995 [3d Dept 1987], appeal denied 70 NY2d 602 [1987]). Conduct undertaken for purely personal reasons, however, unrelated to an employees job, falls outside the scope of employment (see Rivera v State of New York, 34 NY3d 383 [2019]; N.X. v Cabrini Med. Ctr., 97 NY2d 247, supra; Judith M., 93 NY2d 932; Stevens v Kellar, 112 AD3d 1206 [3d Dept 2013]; Burlarley v Wal-Mart Stores, Inc., 75 AD3d 955 [3d Dept 2010]; Curtis v City of Utica, 209 AD2d 1024 [4th Dept 1994]; Stavitz v City of New York, 98 AD2d 529 [1st Dept 1984]). Sexual assaults are generally considered a departure from duties for "wholly personal motives," not conduct committed in furtherance of an employer's business (see N.X. v Cabrini Med. Ctr., 97 NY2d at 251). Even where a sexual assault occurs during the course of an employee's assigned duties, e.g., while bathing a hospital patient, it has been held to be a clear departure from the scope of employment for solely personal motives unrelated to furtherance of the employer's business (see Judith M. v Sisters of Charity Hosp., 93 NY2d 932).
Here, assuming the facts alleged in the claim are true, the alleged sexual assaults on June 6, 2017 and June 26, 2017 by Sergeant Matthews were a clear departure from her assigned duties for purely personal reasons unrelated to the furtherance of her employment. As a result, the State may not be held vicariously liable for these assaults under principles of respondeat superior. The claim therefore fails to state a cause of action against the State premised upon the sexual assaults allegedly committed by Sergeant Matthews.
Indeed, the claimant even alleges that after approximately 30 seconds of "tugging at his penis Sgt. Matthews gratified herself and then stopped and stood up stating 'I thought your pants were altered' " (defendant's Exhibit B, Claim, p. 1).
Unlike the alleged sexual assaults, it cannot be concluded as a matter of law that the claim fails to state a cause of action with respect to the alleged physical assault on November 24, 2017. Notwithstanding claimant's characterization of the alleged assault as an act of retaliation for his prior complaints regarding Sergeant Matthews, it cannot be determined as a matter of law whether the conduct alleged was undertaken for purely personal reasons or was a generally foreseeable incident of a correction officers' employment with DOCCS.
New York does not recognize a common law cause of action to recover for harassment (see Garza v Nunz Realty, LLC, ___AD3d ___ 2020 NY Slip Op 05578 [1st Dept 2020]; Scialdone v Stepping Stones Assoc., L.P., 148 AD3d 953, 954 [2d Dept 2017], appeal dismissed 29 NY3d 1113 [2017]; Wells v Town of Lenox, 110 AD3d 1192, 1193-1194 [3d Dept 2013]). To the extent defendant construes the series of incidents and threats by correction staff, allegedly occurring between July 10, 2017 and November 4, 2017, as alleging a factual basis for claimant's request for money damages, the Court agrees these allegations, assumed true for the purpose of this motion, fail to state a cognizable cause of action.
To the extent the claim rests on an alleged violation of the prohibition against cruel and unusual punishment contained in the Eighth Amendment to the Federal Constitution (see defendant's Exhibit B, Claim, p. 4 at bottom), the claim must be dismissed as the State is not a "person" within the meaning of the enabling legislation (42 USC § 1983) (Brown v State of New York, 89 NY2d 172, 185 [1996], citing Monell v New York City Dept. of Social Servs., 436 US 658 [1978]; see also Shelton v New York State Liq. Auth., 61 AD3d 1145 [3d Dept 2009]; Markowitz v State of New York, 37 AD3d 1106 [4th Dept 2007]; Matter of Gable Transp., Inc. v State of New York, 29 AD3d 1125 [3d Dept 2006]; Welch v State of New York, 286 AD2d 496 [2d Dept 2001]).
Turning to the timeliness of the claim, Court of Claims Act § 10 (3-b) requires that an intentional tort claim be filed and served within 90 days after the accrual of the claim unless a notice of intention to file a claim is served within that time period "in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim." The State's waiver of immunity under Section 8 of the Court of Claims Act is conditioned upon compliance with the limitations on waiver set forth in article II of the Court of Claims Act, which include the time limitations set forth in Court of Claims Act § 10 (Lyles v State of New York, 3 NY3d 396, 400 [2004]; Alston v State of New York, 97 NY2d 159, 163 [2001]; Snickles v State of New York, 159 AD3d 1522 [4th Dept 2018], appeal dismissed 31 NY3d 1130 [2018], lv denied 32 NY3d 911 [2018]). Consequently, statutory requirements conditioning suit must be " 'strictly construed' " (Kolnacki v State of New York, 8 NY3d 277, 280 [2007], rearg denied 8 NY3d 994 [2007], quoting Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Young v State of New York, 138 AD3d 1357 [3d Dept 2016]) and absent waiver of an objection to the timeliness of the claim (see Court of Claims Act § 11 [c]), dismissal of a claim not served or filed accordance with Court of Claims Act § 10 is required (Jones v State of New York, 171 AD3d 1362, 1363 [3d Dept 2019], appeal dismissed 33 NY3d 1056 [2019]; Baysah v State of New York, 134 AD3d 1304, 1306 [3d Dept 2015]; Encarnacion v State of New York, 112 AD3d 1003 [3d Dept 2013]; Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]). Notably, "[b]oth filing with the court and service upon the Attorney General must take place within the relevant statutory period" (Caci v State of New York, 107 AD3d 1121 [3d Dept 2013], citing Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]).
Here, it is undisputed that the claim was both served and filed on January 10, 2018, within 90 days of the alleged assault and battery on November 24, 2017. The allegations in the claim with respect to this incident being sufficiently specific to meet the pleading requirements of Court of Claims Act § 11 (b), the defendant's motion is denied with respect to this cause of action. Based on the foregoing, defendant's motion is granted and the claim is dismissed except to the extent claimant alleges a cause of action for assault and battery by correction staff on November 24, 2017 and with respect to that cause of action the motion is denied.
Defendant's contention that the notice of intention was insufficient to extend the time for service of the claim with respect to the allegations of harassment set forth in the claim has been rendered academic by this Court's determination that such allegations may not form a factual predicate for a cognizable cause of action.
October 20, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of motion dated September 8, 2020; 2. Affirmation in support dated September 8, 2020, with Exhibits A-C.